High drama in the courts: Bar owners try to skirt state's smoking ban

Actor Daniel Radcliffe smokes a cigarette in his role as Alan Strang in a London production of "Equus." The law's exception was granted for such scenes.

Dressed in his favorite Renaissance Festival outfit, complete with tights and feathered cap, Mark Benjamin was the very romanticized image of the Bard this winter as he encouraged other "actors" at Barnacles Bar in Mille Lacs, Minn., to light up and act out in a creative attempt to take advantage of the theater exception to the statewide smoking ban in October.

Later this year, Benjamin will get a chance to say fie to the law again, but this time he'll be telling it to the judge. Benjamin will represent Tom Marinaro, owner of Tank's bar in Babbitt, Minn., who was ticketed for "directing" a play that allowed patrons to smoke. On May 6, Robert Ripley, owner of the Bullseye Saloon in Elko, Minn., will go before a Scott County judge for the same charge. Ripley said Benjamin will also participate in that case.

While the Minnesota "actors" who smoke in bars have drawn attention from across the country, they aren't the only ones to dream up ways to skirt smoking bans. Some have declared themselves exempt private clubs, other have said they don't understand the "no" in "no smoking." They've lost in the courts. Benjamin's odds of winning are probably about the same.

Consider Taverns for Tots, a group of Toledo, Ohio, bar owners who banded together to tap into the exemption that allowed smoking in private clubs in the city. Taverns for Tots charged customers $1 for membership in their club, whose activities were smoking and drinking. Those who didn't join weren't served and those who did were issued membership cards and their names were put on a roster. The "clubs" made donations to local children's funds and declared themselves nonprofit.

Other attemptsThat was 2004. Two years later Ohio passed a smoking ban, which rejected a competing proposal that would have carved out exceptions for bars, some restaurants, bowling alleys, bingo halls and private clubs. The law prohibits lighting up in almost all indoor spaces. The bar owners sued, calling the law unconstitutional. Not so, said a Hamilton County judge in March.

The owner of Apache Corral in Riverside, Calif., took a page from Taverns for Tots and added a twist. Giving each of four employees 1 percent ownership, the proprietor argued that the Apache Corral fell under the owner-operated exemption. But a Riverside County judge didn't buy it because the four "owners" weren't listed on the liquor license and did not share in any profits or losses. The owner paid a $150 fine following the 2000 decision.

And then there was Oklahoma City's Meridian Lanes that argued the bowling alley was really a smoking area for the adjacent restaurant, which was allowed under Oklahoma law. Sorry, said the judge (PDF) in November 2006. Just because a place has a license to serve food doesn't make it a restaurant if the food is secondary to the main use for the space, like bowling.

There have also been court battles over the accoutrements of smoking.

The owner of the Bent Barrel in Las Vegas tried to convince a judge that a ban on ashtrays and matches violated his First Amendment rights because he used them to advertize the bar. Didn't work. (PDF)

Perhaps the best was in Austin, Texas, where the owner of three bars substituted candle holders for banned ashtrays. In March the Fifth Circuit Court of Appeals reversed (PDF) a lower court that had agreed with the proprietor that the ordinance was vague.

The definition of ashtrays posed a similar problem in Frankfort, Ky., where proprietors argued any receptacles could be used as ashtrays, and, as a result, the law was unconstitutionally vague. The court didn't buy it.

Free expression?Sometimes the courts have turned down efforts to add exemptions to smoking bans. The Colorado Legislature, like 19 other states, rejected a proposed amendment that would have created an exception for theatrical productions. Last year three nonprofit playhouses tried to convince the courts that to ban the smoking of cigarettes in theatrical productions violated the First Amendment right of free expression. What is Virginia Woolf without a cigarette?, they argued.

In February the Colorado Court of Appeals affirmed the trial court that had concluded there were reasonable alternatives to smoking, such as fake cigarettes. What's more, theater by definition requires viewers to use some imagination. An appeal to the Colorado Supreme Court is expected within the next week.

"The audience is aware that the scenes are not real. Murders are not committed, actors do not fire live bullets at each other or at the audience, the theater is not set afire to illustrate the burning of Rome in Julius Caesar," the Supreme Court said.

New York started out ahead of that issue. In New York City theaters, which have fallen under a statewide smoking ban since 2003, actors may smoke herbal cigarettes. If they want to smoke tobacco, the production has to apply for a waiver from the city. It's an arduous process.

But when it comes to smoking, you gotta love the Dutch. As of July 1, it will be illegal to smoke cigarettes wholly or partially made of tobacco in restaurants, hotels and coffee shops in Holland. Marijuana smokers who roll their own without adding tobacco can toke up without worry, however.

Focus on MinnesotaAlthough news of Minnesota's theatrical approach to the ordinance went viral over the Internet, a search did not turn up any proprietors outside the state who tried the same trick. Maybe others are waiting to see what will happen in Minnesota.

If they head up to Virginia later this year, they'll get a hint when Benjamin and Mike Kearney, city administrator for Babbitt — a town that covers about 108 square miles just south of the Canada — argue the law before a St. Louis County judge. They'll even get a chance to see what it's like for the folks who slog through snow at the end of April just to get to Tank's Bar.

Benjamin will be representing Marinaro and Marie Rinta, owners of Tank's Bar in Babbitt. For about a month earlier this winter Tank's declared itself a playhouse for an "improvisational theatrical production entitled, The Gunsmoke Monologues" that started at 3 p.m. and ran until the bar closed.

Babbitt being the kind of town where communication is open, Chief of Police Terry Switajewski had told Marinaro and Rinta that there was a ticket in their future if the smoking continued. On March 14 Switajewski made good. The fine? Up to $300.

"He was just doing his job," said Rinta, speaking about the chief. "There are no hard feelings."

But the show—and the smoking — went on. In fact, a patron who was visiting from the Twin Cities and had also been given a ticket, returned to his table and lit up, according to Rinta.

"Performances" continued until the following Wednesday when a person from the Minnesota Department of Health stopped by with a copy of the law and a Post-it note that said the bar's food and liquor license would be suspended and the owners would be looking at a $10,000 fine if "The Gunsmoke Monologues" continued.

"With the threat of shutting us down and a $10,000, fine they won," Rinta said.

Marinaro and Rinta got the idea to test the theater exemption when they saw media coverage of a similar play at Barnacles Resort and Campground in Aitkin, Minn. That's how they heard about Benjamin. When they got hit with the tickets they went to him for legal representation.

There are 10 exemptions to Minnesota's smoking ban (PDF), including one for shops where customers are sampling tobacco products, and another for family barns. Why couldn't a bar owner add a smoke shop and say the patrons are just sampling the goods? Or bring in a cow and call it a family barn?

Benjamin said he had been trying to come up with a way to fight the smoking ban for a while when he was "all duded up at the Minnesota Renaissance Festival. The theater exemption just clicked for me."

Whether he did it consciously or not, by choosing the theater exemption Benjamin put his finger on the resentment that has long bubbled between the Iron Range and Twin Cities, blue collar versus white collar. He says the law is "mean spirited" and favors the kinds of Minnesotans who go to the Guthrie Theater while penalizing the kinds of folks who smoke in VFW halls.

"Regular schmoes just trying to make a living don't have a watering hole to go to any more," he said. "I don't see a lot of respect for our side. When the bar owners and vets ask for an accommodation, they're not given a bone, but the Guthrie gets exactly what it wants."

That may be the reason that the ploy has attracted so much attention. Or, maybe because it's just plain quirky.

Judith Yates Borger reports on legal affairs, science and other subjects. She can be reached at judy [at] judithyatesborger [dot] com.

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Comments (15)

Submitted by Gregory Lang on April 28, 2008 - 4:44pm.

(1) On April 28, 2008, Gerald Abrahamson says: If they really are claiming to be putting on a play, then they will be able to show their city-issued license (or application--at a minimum) as a live-production playhouse...."

Actually, there is no such thing as a as a "city-issued licence as a live production playhouse."

If you have events open to the public a city can enforce reasonable fire and safety ordinances. This is reasonable in light of the history of fire deaths in public placed (an example being the Rhode Island bar where flammable foam ignited and killed 100 people a few years back.)

As an example a former local "actress" Kathleen Ann Soliah/Sara Jane Olson wanted to have a fundraiser "Ungagged Two" in the summer of 2000 to try to raise money for her legal defense for charges she claimed were "all political". The event had a $10 charge and was advertised on her website. The original location was an artist "warehouse space" in Northeast Minneapolis that did not have a commercial occupancy permit. This was stopped but the event occurred at a church hall in the Tanglewood neighborhood, also in Minneapolis. They reportedly had a play (with political commentaries), speeches and music. No "live-production playhouse" permit was needed, just the fire code occupancy permit.

A second example in my Longfellow neighborhood is Patrick's Cabaret. http://www.patrickscabaret.org/ It was originally in an old storefront near Franklin and 35W and had no public occupancy permit. It is now located in the old firehouse near Minnehaha and Lake Street. The building was brought up to code and it has a public occupancy permit. It does not to get a permit for a "play". (IE:Wicked Sister Dance Theatre on 04-30)

For the vast majority of us, this is old news. The law was passed, took effect, and is now subject to enforcement. Its clear that neither side is happy--which means that the law is probably just about right.

Most of us enjoy the clean air in the bars and restaurants. (Side Comment: Now, if something could be done about men and women who insist on marinading themselves in cologne and asphyxiating the rest of us in the elevator, THAT would be an accomplishment!)

Like any other issue, the three or four percent at opposing ends will continue to try and turn this into an ongoing media circus. I have no doubt that there will be court challenges coming up, but one has to wonder if that money might not be better spent elsewhere.

For instance:

Minnesota taxpayers are going to spend $5 million to study why some miners on the Iron Range are contracting mesothelioma--a worthwhile expenditure. Why couldn't tobacco settlement funds have been used to pay for that study instead of spending more for lawyers and lobbyists? THAT is the sort of thing that should be funded out of those tobacco settlement funds.

"People are under economic stress and they don't have their regular watering hole to go to."

Actually, they do. They are all smokefree now. In spite of the lousey weather this weekend, Spring is coming, and all smokers need do is move to the exit and enjoy their cigarette al fresco, providing a safer and healthier environment inside for the hospitality workers, musicians and patrons who work there.

We have seen these type of cheap theatrics before, and as Judith mentioned, they always fail.

I'm a Minnesotan -- a veteran and a regular Joe (well, a regular Bob) who enjoys the VFW AND the Guthrie. See my counter to Mr. Benjamin's points on this KSTP-TV story:

Judy and Bob seem to think this theater night scheme is just a way for business owners to get around the smoking ban for the short term and then, assuming the courts rule against them, they will just shut up, take their financial losses like good little citizens, and bow down to the state.

None of these proprieters harbor illusions about continuing this scheme indefinitely. They know something will have to give.

I can assure you that the theater exemption is just the crack in the door that they now have their foot firmly wedged into. It has opened the door for a ton of favorable publicity and some pretty impressive fund raising.

This isn't gonna just go away if the courts rule against them, or even if they rule in their favor for that matter.

A favorable (for the bars) theater exemption ruling will force the legislature to re-open the FTBA to get rid of the exemption and all sorts of havoc could result from that.

I've researched the law and can assure all of you that Theater Night will not pass into ... the night. The Legislature provided no limiting definition to the term "theatrical productions" -- like they did for Native American ceremonies, farms and tobacco shops, all exceptions to the smoking ban. The Judicial Branch interprets the law but does not re-write it. Thus, one court correctly interpreted what most people understand to be an ashtray (an object) but would have enormous problems interpreting "theatrical productions" (an art form). It necessarily would require a court to review each bar's Theater Night on a case-by-case basis - something the U.S. Supreme Court used to do in the '50's and '60's with pornography before giving up. Our approach to the defense of Theater Night is to remind the court that it need not define the term "theatrical productions". That is the province of the Legislature and they need to take a second look at the exception and clarify it. When they do, we will be there to remind them that public health is more than just physical health (clean air.) It is also mental health (having a job and a place to socialize.) If we're going to have a smoking ban, let's have one that takes into account the physical AND mental health components of a comprehensive public health policy.

Oh this is fun. Enjoy the show all you antis, and watch how these bans s-l-o-w-l-y disintegrate in the coming years.

Now why didn't we smokers just toss out our cigarettes, buy Pharma cessation products and become your friend, sitting there for hours in clean bars, talking to you and making your life more and more interesting?

Antis ARE destined to be a short paragraph in the history books - not smokers!

Hey, we're not going anywhere. You thought it was gonna be so easy, that smokers would love you, and you wouldn't have to lift a finger - SUCKER!

We ARE still here, we're fighting back now. We'll find a way, and time is on our side - because you don't want to keep fighting us the rest of your life, do you? No way! Because you actually got better things to worry about besides some guy smoking in a bar, or about some gal in your office wearing perfume.

You're hoping the next generation will grow up to be feebs, ninnies and liars just like you?

So here's a clap on the shoulder, and a fake grin of support and understanding, the kind we see antis make all the time - smokers aren't gonna go away, we'll just keep fighting, and why?

Because now we have nothing left. YOU did that. Which means we have nothing left to lose, and that's when a person becomes dangerous. You wanted to take away everything! Not smart at all, but then I never met an anti who could think rationally; they can only tell great lies, they're good at that.

Thank you for your service to our country. Soldiers have fought for our freedoms since the beginning of this great country. One of those freedoms is the freedom of choice. This law has effectively eliminated that for these small business owners, employees and customers.

Our country was built on a free enterprise system. Any business owner who thinks it’s in their best interest to be smoke free should do just that. Any employee who thinks it’s in their best interest to work in a smoke free environment should do just that. And any customer who wants to have a beer in a smoke free environment should frequent that type of establishment.

The anti smoking lobby blew it on this one. By not allowing exemptions were they obviously should be, this whole thing is going to blow up. That’s a good thing. Our legislators wrote a bad law and are afraid to reopen the debate. Seeing that cigarettes are a legal product, I’d say your money would better spent making the sale of cigarettes illegal vs putting your agenda on the backs on small business owners. But that will never happen. How would the politicians attempt to replace the tax revenue that would be lost as a result? Plus we all know how well prohibition has worked in the past.

Thank you Mr. Benjamin for fighting for the right to choose and showing the obvious hypocrisy of the anti smoking movement here and across the country.

The list is at times sensible and sometimes "quaint". It lists, "entertainment, place of" and "theater" but also "ice peddler" and "motor scooter leasing". Minneapolis has one of the largest Segway rental fleets in the world and last I checked there was a "Rent a Harley" business in the Warehouse District. Both the ice and the scooters are vestigial. Before WWII many home literally had an "icebox". In the early 1970's a very small powered motorcycle like the $215 Honda 50 didn't require a motorcycle licence so there were a lot of accidents.

Minneapolis would be had pressed to differentiate between an entertainment and "theater" licence. This would require reviewing "content". Legally, that ground was well plowed in the past with X-rated movie theater legal fights. (I've read allegations that these "movies were supposed to be a tad light on plot, dialog and acting!)

The logical conclusion would be to have a Minneapolis licence official review all "theater" scripts and decide if they are really "theater".

You might recall a public official in Maplewood who had a "non-disparagement clause" written into his work contract. You might also recall the late Governor "Rudoph G." Perpich who had his lawyer brother going after anyone who spoke I'll of Perpich (the lawyer brother gave "permission" to use "Governor Goofy".

There are logical reasons to licence "theaters" but this could just as easily be movie theaters. The city would be hard pressed to differentiate between "live entertainment, and theater.

Also, under the proposed resolution individual municipalities could allow or not allow smoking exemptions. Minneapolis doesn't allow indoor smoking. If I get bored I might read the Minneapolis ordinance to see how it handles things like actor smoking at the Jungle Theater (where no advance notice or signage was done.)

Yup - All eyes will be on St. Louis County, where I grew up. My thoughts are with my rural bar owner friends who have been bleeding since the ban. The work I do allows me to see the year to year numbers, and there is no question this has stung - hard. People have just decided to stay home and have their beer & smoke. The non-smokers, who were never there in the first place, still haven't shown up.

I trust the court will look at the exemption for the theater, recognize that theater wasn't defined, and rule according to the law. Then the real debate begins. I think small business owners were a bit blind sided by this, but if it goes back to the legislature, it'll be a whole different ballgame next time around.

A lawyer who takes quirky cases

Courtesy of Mark Benjamin

Mark Benjamin

Who is Mark Benjamin?

It appears he's a lone practitioner who has taken up a quirky cause.

A check with the state board of professional responsibility shows that he is licensed to practice law and has no black marks on his record. Half a dozen Cambridge area attorneys did not return phone calls to ask about his reputation. He says he has no ties with tobacco companies, and there's no way to verify that. People who follow tobacco litigation had not heard of him until this winter when he led a theatrical troupe smoking in Barnacles in Mille Lacs And now he's on YouTube.

If you watch the video closely, you can tell he's uncomfortable with a cigarette in his hand. He doesn't quite know how to inhale. That's because he doesn't smoke. But Benjamin doesn't think it the least bit odd that he has become the voice for bar owners who oppose the smoking ban. "I favor civil rights but I'm not a person of color," he said.

He graduated in 1981 from the University of Minnesota "near the bottom of my class," he said, then went into the Marines for four years where he worked as an attorney in Cherry Point, NC. He calls himself a liberal Democrat.

He joined 58-year-old Cambridge law firm Parker, Satrom & Donegan as an associate in 1987, practiced criminal defense and family law, then left as a partner in 2004. He left the firm after committing himself to a mental hospital for help for depression, he said, then returned to practicing criminal law.

Until March, his office was in a double-wide trailer on the south end of Cambridge that he shared with another attorney, who had to walk through Benjamin's office to get to the coffee pot. When his trailer-mate moved out, Benjamin found new quarters in an office with 12-foot high ceilings in an old building in Cambridge.

When he's not representing bar owners, Benjamin is a criminal attorney who "chooses" his clients based on what he calls the gold standard. "I tell them I want them to be one-time clients," he said. Then he follows up to see that they are getting the mental or medical help they need, he said.

He's representing Tom Marinaro, owner of Tank's Bar in Babbitt for free, according to co-owner Marie Rinta. "There's a small fund to defray expenses," he said. "My Geo Metro doesn't burn much gas."

Benjamin first heard complaining about the smoking ban in VFW halls.

"This is more about mental health," he said. "People are under economic stress and they don't have their regular watering hole to go to." — Judith Yates Borger